Tension and Legality: Towards a Theory of the Executive Branch
29 Canadian Journal of Law and Jurisprudence 321 (2016)
28 Pages Posted: 10 Jan 2020
Date Written: August 1, 2016
This article challenges hierarchical and binary thinking in constitutional theory, and offers an alternative basis that draws on multidimensionality. The recognition that constitutionalism is a collection of ingrained tensions between competing forces and conceptual bases is applied in a study of the executive branch, a field that is especially lacking in general theory. The existing research of the executive is almost entirely concerned with specific legal systems and is typically normative; descriptively, references to puzzles and ambiguity offer an inadequate, a-theoretical basis for the understanding of the nature of the executive. Rejecting three alternative models, two of them hierarchical, the third, binary, I reach the internal tension model, which acknowledges the internal irresolvable tension between the executive’s subservience to law and its dominance beyond law, which underlies executive action. The article addresses the ways law can, and does, maintain this internal tension, and ends with some comments on future research directions.
Keywords: Executive branch, executive powers, constitutionalism, tension, fuzzy legality, legality, public law, constitutional theory, separation of powers
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